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A Public Defender's Case

The court system is badly flawed, and those accused of crimes suffer greatly as a result, says David Feige, a former public defender in the Bronx. Mr. Feige wrote about his experiences in the recent book Indefensible, and joined the Gotham Gazette Book Club recently to discuss his views. The following is an edited transcript.

GOTHAM GAZETTE: A big part of your book is about your connection with your clients. Is there a particular client who stands out, where you say "what happened with this person illustrates what I think is wrong with the system"?

DAVID FEIGE: There are lots of clients who do that, but all in different ways. It's hard for me to peg one.

I write about Bemo, a guy from the Bronx who was an inveterate thief. He used to be a big bad gangster in his youth and became a crackhead who I completely loved. He was murdered about three weeks after I wrote about him in the New York Times Magazine, shot in Soundview [housing projects]. I wouldn't say that his life or experience reflects so much on the system, but more that it exemplifies a really difficult concept: Here's this guy who does bad stuff all the time, and he is unbelievably likeable. Beyond likeable. Completely great. He was a pleasure to represent. That is almost nonsensical to a lot of people who see my clients as criminal and never get past that. They don't see them as complex, troubled humans.

A detective told me this great story about how at 2 o'clock one morning he was patrolling Soundview in an unmarked car and sees my client walking down the street with an armful of recently stolen radios. Bemo spotted the car in a second, and he walks over to it, puts down the radios, and says, "Oh, you've got me again." He was so charming about it that the detective said, "I can't arrest him." I like that it wasn't just me. He really was that charming, that interesting. Of course, in a certain way he was also pathetically desperate, drug addicted, and often drug addled. But still completely human.

GOTHAM GAZETTE: Are most of your clients people you see over and over?

DAVID FEIGE: Not most, the volume makes that impossible. I could go into arraignments on a given night, and do 30 cases. But especially if I am doing misdemeanor cases, I will represent one or two of them again or will have represented one or two of them in the past. There is also a core constituency that I was in fairly close touch with for long periods of time.

GOTHAM GAZETTE: You represent both innocent people and those who are guilty, but you mention in the book that it's the innocent ones who break your heart. Can you elaborate?

DAVID FEIGE: All of them break my heart, even a guy who has done some awful stuff. It's awful. By the time I've gotten to trial I know their mothers, I've consoled their siblings. I know their families, their history, their lives. I generally have developed a connection with them, and watching any human dragged off into a cage in handcuffs sucks.

That said, there's something worse about someone who you absolutely believe is innocent. Because no matter how jaded and cynical you are â€“ and I'm reasonably jaded and cynical â€“ you still have some belief that the system is supposed to work out. When it doesn't it is an almost existential crisis, and you always blame yourself. You're their voice, their protector, and when they're convicted it is by and large your fault. There's no way around that. I think about some of the innocent people who are in prison wrongly pretty much every day. They are on my conscience. That's hard to bear.

FORCED TO PLEA BARGAIN

GOTHAM GAZETTE: One issue you deal with in the book is the way that the institutionalized tendency to plea bargain is damaging to defendants. Can you explain how this works?

DAVID FEIGE: Let's assume you're accused of jumping a turnstile, and let's assume you're innocent. You go to court, and the traditional thing happens: The district attorney offers you a trespass violation and one day of community service and it doesn't go on your record. And you say, "But I didn't do it." Your attorney says, "I'm happy to fight the case, but you have to understand it's a very long process."

The judge lets you out, and you come back a month later. You get to court at 9:30 and you sit there. You're not allowed to read, you're not allowed to do much of anything. And you sit there, and you sit there, and you sit there. For hours and hours. Eventually your lawyer walks in, and several hours later your case gets called, [and you stand in front of the judge for three minutes] and says come back in September, and that's it.

So you come back in September, but it turns out the prosecution didn't file the papers. So you come back in October, and then again in November, and pretty soon you've used up a third of your vacation time, and you're getting used to going to the Bronx and sitting there saying "Oh for God's sakes." And your boss says, "what's going on?" And you explain it to your lawyer, and your lawyer says, "I understand, but we're a year and a half away from trial. You have to keep coming back." So you get another court date in December, January, and one in February. But this time your kid's sick, and you call your lawyer and say you can't make it to court, and he says no problem. Then you get a call at the end of the day saying "I'm sorry, but there's a warrant out for your arrest."

Now here you are, a decent citizen trying to fight your case, and there's a warrant out for your arrest. You're freaking out, wondering how this became your life. At some point, you go in and your lawyer says, "Look, this isn't going to go on your record. It's going to take a long time. Maybe I can get you a $50 fine." And you say, "Get me the hell out of here." And you plead guilty, pay a $50 fine, put the whole thing behind you, and pray you never have to come back.

That's all well and good if you never do. But if you live in the Bronx [chances are you'll] get caught up in a sweep in a public housing complex, or something else. Those are arrests. This time the district attorneys say, "You've already gotten your violation; now you have to plead guilty to the misdemeanor." And so on.

Then you have programs like Operation Spotlight. This program is based on the idea that there are a few people who are really bad and commit all these misdemeanor crimes. If you have had a certain number of arrests in a certain period of time you get deemed an Operation Spotlight Offender. You go to a special court with a specially trained judge. Do you know what that means? It's the judge who is just going to ream people out. Talk about how to rig the whole system: You define a category of people, pick a badass judge, and send them to him.

GOTHAM GAZETTE: But the incentive to plea bargain, is this a new thing?

DAVID FEIGE: It's not new, but it's worse here than it is elsewhere. It is a function of the aggressive, broken windows policing style that we've seen in the last decade or so. This has led a huge increase in arrest volume for petty crimes.

There are no questions that in some cases arresting the guy for jumping the turnstile on the train or smoking weed leads to the gun arrest. But my sense is that it is an infinitesimal percentage of those cases. Let's say it was one out of 400. Then the question is how much harm were we doing in the other 399 cases, and was it worth it? I don’t know where I come out on that yet. I'm wrestling with it.

GOTHAM GAZETTE: So if the number of arrests went down, though, that would be the end of it?

DAVID FEIGE: It would have a great effect. But you have to remember how overburdened the system is. There were something like 50,000 misdemeanor cases in the Bronx in 2003, but only 23 jury trials. There were some more bench trials, but still, that's an astonishing number. You have to go a long way to make a dent in the system when you're talking 23 out of 50,000.

They have made structural changes in the Bronx that are speeding up both jury and non-jury trials on misdemeanors, and I'm told to great effect. What they did was deputize all the Supreme Court judges, forcing them to take misdemeanors, which used to all go to criminal court. Supreme Court used to only handle indicted felony cases. Apparently it's having an interesting effect. I don't know the numbers, but the anecdotal evidence is that things have speeded up significantly.

PERCEPTIONS OF THE CRIMINAL JUSTICE SYSTEM

BOB ZANE: Wouldn't you say that there are a lot of assistant district attorneys or law enforcement officers who would be able to write a book from the opposite viewpoint: They're seeing guilty people who they are trying to prosecute â€“ sometimes people who committed serious crimes but have a lot of money â€“ walk free?

DAVID FEIGE: The perception is commonplace that guilty people go free on process all the time, that the prosecution is under funded, that the defense is full of high priced fancy pants lawyers. I was a public defender for 15 years. I could bring you up to the Bronx right now, and a tiny percentage of the people there have private lawyers. Probably more than 90 percent of people in the Bronx have public defenders, way more than three quarters in Manhattan have us.

Hiring a criminal defense lawyer is not cheap, and not many people can do it. The reality as I experienced it is that it's the prosecution that has the vast majority of resources. They have the 32,000 members of the NYPD who are their investigative arm; we rely on college interns. When you look at the caseloads at the prosecutors office, they are a fraction of what ours are. We are outmanned and generally over-resourced at almost every staged.

So yes, there are lots of people who can write the opposite book. I would suggest that the opposite book is written all the time. Ed Conlon wrote Blue Blood, which is an interesting portrait. Almost every episode of Law and Order, in many ways, plays into that. You so rarely see public defenders in the public eye. If you watch Law and Order, or pretty much any other TV show, all the defense lawyers are private, fancy suited, big money guys. That's a tiny proportion.

To make a related point, if you were to watch TV, you would think that 80 or 90 percent of the cases in system are rapes or murders. The reality is that there are roughly 600 murders in New York City in a year, and there are 300,000 arrests. What are the other 299,400? There are over 60,000 marijuana arrests in New York every year, but you won't see a weed case on NYPD Blue. They're ignored. There are tens of thousands of trespass cases, but you will never see those on TV. They're not dramatically interesting.

BOB ZANE: You mention when the judges are pro-district attorney. But there are many times when a cop makes an arrest, and the perpetrator walks out quicker than he does. Recently a judge who was kicked out of the bench allowed a person to escape out of her office and get away.

DAVID FEIGE: You're right about that. There are judges who are perceived of â€“ or who are â€“ pro-defense. No question. But once again they are the tiniest minority. Are there a couple? You bet. I love them, I'm grateful for them; they were a little oasis of pleasure.

But that being said, my experience is that the one thing that will get you kicked off the bench quicker than anything else is letting out someone who does something bad again, or being perceived as soft on crime. A judge once called me and said "Dave, the first thing they tell you in judge school is that no one every got kicked off the bench for setting bail too high." That, it seems to me, is the bigger problem.

Have you ever seen the headline: "100 parolees complete parole and go on with their lives"? No. The one we see is "Sex Predator Re-Offends" or "Murderer Released Kills Again." The truth is that's one of a thousand, of ten thousand, of a hundred thousand. But we're led to believe from the coverage that that happens every time. And worse, we legislate from that perspective.

GOTHAM GAZETTE: Do fictional accounts of the criminal justice system contribute to that perception?

DAVID FEIGE: Short answer: yes. It has a terrible, pervasive effect.

I have come to believe, maybe self servingly, that it is critically important to try to change the perception of the criminal justice system, to tell the truth. I don't think anyone is paying attention to the issues I care about. I don't think that anyone is looking at the cases that move me and that are far more predominant than those that do get the attention.

I think the old adage "If it bleeds it leads" has had tremendously detrimental effects on the criminal justice arena at every level. To the extent I can mount a little one-person crusade to mount a counter-narrative, that's what I want to do.

THE PHILOSOPHY OF CRIMINAL JUSTICE

BOOK CLUB MEMBER: I think it's very admirable what you do â€“ in the vast majority of cases, fighting for those who are innocent, and for those who are guilty getting them the right kind of sentence. But what I don't understand about your personal psychology is why you don't feel guilty getting a serious murderer off. Someone like that, in my book, should be in the pen.

DAVID FEIGE: One of the things I tried to make clear in the book is that I don't like it when my guilty clients go away. I like them, and I don't want to see them go to prison. I have real trouble defining someone from one aberrant act.

BOOK CLUB MEMBER: But an aberrant act where they killed someone? That's serious. I'm not talking about trespassing or slapping his wife.

DAVID FEIGE: Let me ask you this: Why should we put them in prison?

BOOK CLUB MEMBER: To keep them off the street.

DAVID FEIGE: For deterrence?

BOOK CLUB MEMBER: For deterrence, and also I'm into punishment.

DAVID FEIGE: If you go through the history of penology, there are various rationales for putting people in cages. One of them is deterrence, which is we're going to do this awful thing to you, and therefore you're going to get scared and you're not going to do it. That's the main argument for deterrence.

In my experience, deterrence doesn't work. It might work with white-collar guys. But most of the guys who I represent didn't do what they did because they were sitting at home poring over maps and rigging alarm systems like they do in heist movies. They were hungry, or they were pissed off. There are million reasons.

When I was in the Bronx, there was one judge who used to ask the defendant in every plea bargain: "Now sir, in your own words what did you do to make you guilty of this crime â€“ and why?" I always prepped my clients to answer this. But if you hadn't, it was almost comical. They would be like "Uh, he looked rich?" It was sort of horrifying, but it reflected something very deep: A lot of my clients don't have a whole lot of insight about their own criminality. They haven't gone through the complex moral calculus that Ken Lay did. My guys, by and large, are not rational actors.

BOB ZANE: A lot of them have mental problems.

DAVID FEIGE: Right. It's stuff that is very deep. It's not the kind of stuff that's easily deterred, and it doesn't matter if the penalty is five days or five hundred years. They're not thinking about that kind of thing.

BOOK CLUB MEMBER: So why have laws then? Why even bother? Why not just survival of the fittest.

DAVID FEIGE: Well, I'm getting there. So I don't believe in deterrence. The second part of the theory of penology is rehabilitation. I don't believe that prisons rehabilitate my clients in the slightest. I haven't seen it.

The last pillar of justification for incarceration is incapacitation: these guys are really bad, vicious, sociopathic predators who will continue inflicting murder and mayhem on society until you lock them in a cage forever. That's the only one I buy, and I have represented a few people who I feel that way about, but they are a tiny number. I came to like them also. That being said, I didn't cry as much for them.

Let's take the toughest case, the hardest example from my entire career: There was a pattern robber who used to jack gypsy cabs for their Motorola radios, which are very valuable on the street. It was clear to me that he was a bad guy, and there was no question that he was going to keep doing it. I represented him in a couple of robbery cases in which he was acquitted, walked out, and went back to robbing people. He eventually got convicted and got 20 years.

Did I feel bad that more people got robbed? Not really, even though I suspected he would go out and do it again. The prosecution hadn't done its work, they tried to skate on the case because they thought they had it sewn up. They didn't bother to call some of the witnesses, to produce a lot of the evidence. If you want to put that guy in prison, just do the work. If you're not going to, then I'm actually not that bothered by standing up and saying that you haven't proved beyond a reasonable doubt; this is not good enough.

Did I cry when said person got his 20 years? No, I didn't cry. Do I see that as a supreme injustice? No, I don't. He was one of the very few.

GOTHAM GAZETTE: So your philosophy is that defenders feel bad when innocent people get convicted, and prosecutors should feel bad when guilty people go free.

DAVID FEIGE: Yes, I think prosecutors should feel bad when guilty people go free, and I think they do. But I do think that is also part of the problem in a certain way, because then the next time they are inclined not to give you discovery, or over prep the witness. That's a real problem.

Prosecutors and defense are in different ethical positions, from my experience.

JUDGES

GOTHAM GAZETTE: A lot of your book talks about the personalities of judges or prosecutors, and how that affects your clients.

DAVID FEIGE: You mean it's capricious? That is a problem, and as we were discussing, you undoubtedly see both sides: the judges who are unbelievably tough, and those who seem unbelievably lax. Then I look at some judges and are awed at their ability to be fair.

It really does make a difference. It is certainly tragic that I will be back in the pens at 11 o'clock on a Friday night, saying to someone, "Listen, the best thing I can do for your is to bury your paperwork so you don't see this judge. I know you're going to spend another night in a cell, I know you're going to hate it, but he's going to set bail at $1,500 and the guy who is coming in tomorrow is going to let you walk out." There's something wrong with that.

I think that justice has to be flexible â€“ I'm against mandatory minimums and all that â€“ but there's something wrong about how capricious the system has become.

GOTHAM GAZETTE: So how do you change a system where the capriciousness of an individual can have such a large effect?

DAVID FEIGE: I think there's lots of stuff that can be done, but what exactly should we do? I'm not sure. What I do know is that I spent more than a dozen years in a system that has real flaws, and those flaws need to be exposed.

BOOK CLUB MEMBER: Why are judges in office for life?

DAVID FEIGE: Well, New York judges are not, although they are in the federal system.

The constitutional basis was that they should have total job security so that they would not be intimidated by the mob, by us, by the New York Post. They would be able to say, "say whatever you want, I have the job for life, and I'm going to do what's right."

All that changed in the mid 1990s when Judge Harold Baer of the Southern District of New York suppressed about eight kilos of cocaine as evidence, saying that the search of a car in which it was found was completely unjustified. By my look at it, he was completely right on the law. But the backlash was severe and extreme. There were editorials in the New York Post every day for weeks, calling for the impeachment of a federal judge for making what pretty much every legal expert said was a reasonable decision. Some of the right-wing senators and house members introduced a bill to impeach him. It won't surprise you to find that three months later he reversed himself and reopened that case against her. To me, that was when the federal judiciary capitulated to the will of the mob.

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